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Rajasthan High Court · body

2006 DIGILAW 410 (RAJ)

The Municipal Board v. Mangi Lal

2006-02-07

R.P.VYAS

body2006
Judgment 1. Heard the learned Counsel for the parties. 2. This appeal is directed against the Judgment of the learned Single Judge dated 010.1995 dismissing the writ petition filed by the appellant. 3. The facts briefly stated and relevant for the purpose of this appeal are that the Respondent No. 1 filed an application seeking permission for construction over plot in question under Section 170 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act of 1959) which was granted by the Executive Officer of the Municipal Board vide order dated 111.1983. 4. After the said Executive Officer ceased to be the Executive Officer of the Municipal Board and the Municipal Board was re-constituted and converted into the Municipal Council on 28.06.1984, the Municipal Council, suo moto re-considered the permission granted in favour of Respondent No. 1 and vide resolution on 12.09.1984 cancelled the said permission and the Municipal Council claimed that according to them, the land on which construction was sought to be raised was part of the Municipal land and the land which was belonging to the applicant was out side the area of the Municipal land for which no permission was sought. 5. Be that as it may, aggrieved with the aforesaid order, the Respondent No. 1 preferred an appeal before the District Collector which was dismissed by the District Collector. This led to filing of revision petition before the Board of Revenue against the order of the Collector and the Municipal Council recalling the permission granted by the Executive Officer. 6. The power of Board of Revenue came to be exercised by the Divisional Commissioner. The Divisional Commissioner vide his order dated 16.01.1990 allowed the revision petition, set aside the order passed by the Collector as well as the resolution of the Municipal Council and restored the order of the Executive Officer dated 111.1983 granting permission, however, left the Municipal Council free to raise question about the title before the appropriate forum by having recourse to proceedings in accordance with law opining that question of title cannot be decided in such proceedings. This led to filling of S.B. Civil Writ Petition No. 4069/1991 for quashing the order passed by the Divisional Commissioner on 16.01.1990. 7. This led to filling of S.B. Civil Writ Petition No. 4069/1991 for quashing the order passed by the Divisional Commissioner on 16.01.1990. 7. The writ petition was dismissed by the learned Single Judge holding that it is not in dispute that the Municipal Board had power to grant permission for construction under Section 170 of the Act of 1959 and the power was exercised by the Executive Officer. That being the position, there was no illegality in granting permission by the competent authority. So far as consideration of title of land is concerned, that cannot be subject matter of decision by the Board and the matter must be decided by the competent authority. 8. At this distant of time, we further notice that there was no interim order against the order of the Divisional Commissioner and this Court after hearing the Counsel for the parties to appeal has specifically dismissed the stay petition vide order dated 14.07.1997. 9. This lis is confined to the validity of grant of permission by the Executive Officer way back in the year 1983 as restored in the year 1990. The learned Counsel for the respondents has stated that said permission for construction has been utilized and the construction has already been raised on plot in question. As a matter of fact, if the permission has already been utilized by the respondents, then the petition has become infructuous and no relief can be granted only for academics as this litigation has become infructuous. However, if the Municipal Council disputes the title of the respondent and claimed him to be trespasser on Municipal land, it is free to take recourse to such proceedings as are available to it in law in which such issues can be appropriately determined. This litigation has not effect on the issue. 10. Accordingly, the special appeal is dismissed as having become infructuous. No order as to costs.